Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
No. 124.
Mr. Dichman to Mr. Evarts.
Bogota, December 14, 1878. (Received January 30.)
Sir: I inclose copies of two communications addressed to the secretary of foreign relations, dated November 5 and December 13, respectively, [Page 261] on the subject of the custody of the registers of vessels of the United States by their consuls.
The Department will perceive from these inclosures that the difficulty is one of long standing, dating almost from the very origin of this government, and that in any treatment of the question my object is to arrive at a final settlement which will preclude the possibility of a similar difficulty in future. With this view, a mere understanding with the department of foreign relations as to how the objectionable law in question can be avoided, or even a promise to ask the Congress of Colombia to repeal the same, will not answer my purpose, for either mode of settlement might be only temporary.
The position of the Colombian Government can be stated briefly as follows, that it cannot neglect the execution of a plain act of Congress; that Congress at its last session passed a resolution directing the law to be enforced, and that the reason for such action arose from the fact that several vessels had left the ports of Colombia without a clearance.
My answer to the last was, that unless the Colombian Government could point out to me a case where a consul of the United States had been reported to his government for having delivered the papers of an American vessel, the captain of which had not produced to him a clearance, and no action having been taken on such report by his government, the reason advanced by the Colombian Government could not constitute an explanation for its action.
As to the law itself, I have endeavored to point out to the secretary of foreign relations that the matter was one of international obligation, and as such it was superior to any local law, and that article 91 of the constitution of the United States of Colombia expressly recognized the law of nations as the law of the land.
I also illustrated the position of the Government of the United States from the standpoint of public convenience, its necessity for the protection of destitute seamen who would otherwise become a charge upon the authorities at the Colombian ports, and the disadvantages arising to Colombia by trying to adopt a policy different from that of other maritime nations.
The attention of the department is respectfully called to the citation of the law of Colombia on the duty of Colombian consuls in foreign ports, quoted in page 20 of inclosure No. 1.
I am, &c.,
Mr. Dichman to Mr. Roldan.
Bogota, November 5, 1878.
Sir: Under instructions from my government, and in accordance with the method pointed out by the provision of the 5th paragraph of article 35 of the treaty of 1846, between the United States and New Granada, I beg leave to call the earnest attention of the Government of the United States of Colombia to what appears to be a violation or infringment of said treaty, caused by an officer of the United States of Colombia, claiming to act under instructions from the government at Bogota, which violation or infringement of said treaty took place in the port of Colon. A spin wall, in the month of April, 1878, the facts of which, and proofs thereof, will hereinafter appear; and for said infringment of said treaty I am instructed to demand justice and satisfaction, and to request, respectfully, the taking of such measures on the part of the Government of the United States of Colombia, as will prevent a like violation of said treaty in future.
The facts constituting the cause of complaint, fully set forth, are in the accompanying [Page 262] copies of the official statement of the consul of the United States, and the statements of other persons at Colon-Aspinwall (which copies are respectfully submitted for the inspection of the honorable secretary of foreign relations), and are briefly as follows:
The schooner “Lorine,” being a merchantman of the United States of America, and duly registered as such, arrived on the 15th day of April, 1878, in the port of Colon-Aspinwall, and in accordance with the law of the, United States of America, and in the manner recognized and established, as will be shown hereafter, both by the said treaty of 1846 and the law of the United States of Colombia for merchant vessels of Colombia in the ports of the United States of America, the captain of said schooner deposited the register and other official papers of his vessel with the consul of the United States of America at Colon-Aspinwall.
On the morning of April 16, 1878, the inspector of the port and chief of customs, claiming to act under special instructions from the government at Bogota, did come on board of said vessel “Lorine,” accompanied by armed forces, and then and there, by force of arms, did take possession of said schooner, dispossessing the captain of his command, and did keep possession of said schooner Lorine by means of the armed forces of the United States of Colombia, for four days without paying any heed or attention to the official protests of the United States consul, who set forth clearly what were his rights and duties, and the rights of the vessels of the United States under said treaty of 1846; and by his action, the inspector of the port of Colon-Aspinwall, interfered to their great damage with the business of citizens, and of a corporation of the United States, which business they had a right to carry on, excited local prejudices and hostilities, to the danger of the lives and property of citizen of the United States, and endangered in a reckless manner the good relations which have existed for so long a time between the two sister republics of the United States of Colombia and the United States of America.
It is alleged that the ostensible cause for such action on the part of the inspector of the port was the fact of the non-delivery to him of the register and other official documents of the schooner Lorine.”
As this question of the rights of the consuls of the United States of America to execute the duties of their office by receiving the registers, and their official documents of the vessels of their nation in the ports of the United States of Colombia, has been recognized and affirmed by the Colombian Government in several instances, a being in accordance not only with the usage of maritime nations, but, also, clearly falling within the meaning of the “reciprocity in commerce and navigation,” provided for and protected by the treaty of 1846, and as the law of the United States of Colombia on the duties of Colombian consuls in connection with the vessels of their nation when in foreign ports, and the custody of the documents of such vessels, is identical in spirit with the law of the United States of America on this subject, thus clearly recognizing the reciprocity existing between the two nations, with all of which facts the inspector of the port was made acquainted by the consul of the United States of America, it does not seem probable that his inconsiderate action against an officer and a vessel of a friendly nation, could have arisen from a sense of duty. An over-zealous officer, from a sense of duty, might have raised the question to be decided anew by his superiors at Bogota, but the motives are unknown which could have induced actions whereby, carelessly, interests of such great importance were jeopardized.
As this question of the custody of the official documents of United States vessels by the consuls of the nation has been at different times a subject of discussion between the Colombian and United States Governments, I beg leave to submit the following statement to the consideration of the honorable secretary of foreign relations:
As the honorable secretary knows, and as is so well expressed in the laws of the United States of Colombia, the register of a ship is the evidence of its nationality, issued by the authority of the law of the nation to which such ship belongs, which law is generally enacted in conformity with the well-established international and maritime usage. It is a public document, and so recognized even in the treaty of 1846, where, in article 33, occur the words, “The registers of vessels, or ship’s roll and other public documents.” As the register of a vessel is one of the means by which the Government of the United States exercises its police and revenue power over its commercial marine, and as by means of it the national character of vessels of the United States is established, the Government of the United States cannot consent that the register of any vessel of the United States be surrendered into the keeping of any person other than one of its officers, which is also the principle which controls the legislation of Colombia concerning the documents of Colombian ships in foreign ports.
As early as the 27th of May, 1823, the Hon. John Quincy Adams, then Secretary of State of the United States, in his instructions to Mr. Anderson, then minister of the United States to the former Republic of Colombia, on the subject of a treaty of commerce and navigation between the two countries, in speaking of the rights which the consuls have in the ports of both nations, says:
“There is one right which may be claimed for them (the consuls) with much earnestness [Page 263] on the principle of reciprocity, and even in the fullness of their consular commission. That the registers of vessels of the United States frequenting the ports of Colombia should be delivered to them (the consuls) while they remain there may be reasonably required, because it is prescribed by our laws, and because also, by our laws, the consuls of Colombia would be entitled to the same privilege in relation to the vessels of their nation in our ports.”
In order to illustrate fully the above remark of the Hon. John Quincy Adams, viz, “and even in the fullness of their consular commission,” I beg leave to present a consular commission of the United States to the honorable secretary for his inspection, and respectfully call his attention to Article 4 of law 3 of 1847, which provides that, in the granting of exequatur to consuls of foreign nations, they are to be permitted to exercise the functions prescribed by the treaties with such nations duly ratified and exchanged.
The law of the United States on the subject of the papers of vessels of foreign nations in the ports of the United States, requires that they be delivered to the consuls of their respective nations, under a heavy fine or penalty for a failure to comply with its provisions.
On the subject of the papers of vessels of the United States in foreign ports, the law requires that they be delivered to the consul of the United States, who shall keep them until the master or commander of such vessel shall produce to him (the consul) a clearance from the proper officer of its port, where his ship or vessel may be. Under this provision of the law no consul of the United States could deliver to the commander of a vessel its papers, until the authorities of the port had certified that all the laws of the country had been complied with by giving him a clearance.
As the treaty of 1846 is identical in language in Articles 30, 31, 32, and 33 with the language contained in Articles 26, 27, 28, and 29 of the treaty of 1824, which articles relate to the appointment of consuls and the consular power, the construction put on any part of the treaty of 1824 by the Colombian negotiator thereof, the Hon. Pedro Gual, then secretary of state of the Republic of Colombia, maybe looked upon as authoritative for the Government of the United States of Colombia.
In this communication it affords me pleasure to bring to the notice of the honorable secretary a letter of the Hon. Pedro Gual to Mr. Anderson, under date of August 3, 1824, in which, in answer to a complaint made by Mr. Anderson, he is informed that upon the principle of reciprocity for the consuls of both countries, and according to the position of the United States, a decree had been issued on the 28th of the preceding month, satisfying the observation and wishes of Mr. Anderson, that the consuls of the United States should be permitted to have the registers and other papers of the vessels of their nation.
As this decision was made about the time when the various articles of the treaty of 1824 were being discussed by Mr. Gual and Mr. Anderson, it would be reasonable to presume that no further evidence of the construction of the consular power under the treaty would be necessary; but as the same question has arisen several times from a want of knowledge of the officers of the ports since the decision rendered by the Hon. Pedro Gual, and as the decision of the Government of New Granada and Colombia sustained the rights of the consuls of the United States to have the registers of the vessels of their nation while in the ports of New Granada or Colombia, I beg the indulgence of the honorable secretary in stating to him that under date of March 18, 1835, the Hon. Lino de Pombo, then secretary of foreign relations, informed the minister of the United States at Bogota that a decree would be issued in accordance with the wishes of the minister of the United States, he having brought to the notice of the Government of New Granada that the rights of the consuls of the United States in regard to the registers of United States vessels were being interfered with.
The archives of this legation show further that under date of March 15, 1854, a complaint on this subject was made by the minister of the United Stages and promptly redressed by the Government of New Granada.
The correspondence which took place in 1876 in relation to this matter, by the honorable Mr. Aneizar, then secretary of foreign relations of the United States of Colombia, and the minister of the United States, is undoubtedly familiar to the honorable secretary.
In order to point out to the honorable secretary that the non-delivery of the registers of vessels of the United States to the consuls of the nation may lead to frauds upon the revenue of the United States, and upon seamen shipped in United States ports, and that the laws of Colombia might be made a cloak for dishonest and illegal actions, I beg leave to call the honorable secretary’s attention to the correspondence between the minister of the United States in London and Lord Derby (p. 606, et seq. part 1, of the published reports of Foreign Relations of the United States for 1875). The honorable secretary will learn from the perusal of this correspondence that the right of the consul of the United States at Liverpool to the papers of the ship under discussion was not even questioned, and that the main issue of the controversy was whether the [Page 264] laws of Great Britain afforded any protection against frauds upon the revenue of the United States and the rights of the United States consuls.
I trust that I have shown to the satisfaction of the honorable secretary that both international usage, and the action of his own government, sustain the position of the Government of the United States on this question; but in order to have it settled for all time, as coming clearly within the treaty of 1846, and also the terms of the consular convention, I beg to call his attention to Article 3 of said treaty, which states, as the purpose and object of said treaty, the “placing of the commerce and navigation of their respective countries on the liberal basis of perfect equality and reciprocity.”
To show how the Government of the United States has acted up to this principle, I beg leave to refer to section 4209 of the Revised Statutes of the United States, which, as stated above, not only requires the delivery of the register of a foreign vessel in the ports of the United States to the consuls of its nation, but also attaches a penalty to the non-compliance with that law. Having enjoyed the benefits of this law ever since the Republic of Colombia became a member of the family of nations, I respectfully submit to the honorable secretary if the United States of Colombia can adopt a different policy towards the United States of America without violating the spirit and terms of the treaty existing between the two countries. In this connection, the honorable secretary will, I hope, not deem it out of place if I call his attention to the fact that the rights of the United States, under the treaty of 1846, are not only based upon the mutual advantages of reciprocity of commerce and navigation, but are also required by the consideration set forth specifically in the first paragraph of Article 35.
An examination of Article 33 of the treaty of 1846, and of Article 11 of the consular convention, clearly shows that the rights of the consuls of the United States to the custody of the registers, muster-rolls, and other official documents belonging to the vessels of their nations, is recognized in stipulating in both articles that consuls may demand the arrest of deserters by exhibiting, if necessary, “the registers of the vessels, their muster-rolls, and any other official document in support of the demand.”
I respectfully submit to the honorable secretary that by the very terms of these two articles, not only are the registers and muster-rolls recognized as official documents, but the inference to be drawn from their language is very clear that the fact that the registers, muster-rolls and other official documents belonging to the vessels of either nation must be in the possession of the consuls, otherwise it would be an impossibility for the consuls to exhibit them.
It is very gratifying to find that on the question of consular authority over the vessels of the United States of Colombia, when in foreign ports, the laws of the United States of Colombia require the same duties of, and grant the same rights to, the Colombian consuls which the laws of the United States prescribe for their consuls.
If the honorable secretary will examine article 62, chapter 2, of the law 23 of the 1st of May, 1866, of the laws of the United States of Colombia, he will find it to read as follows:
“Upon the arrival of a national (Colombian) merchant vessel in a foreign port in which resides a consul or vice-consul of the republic, he will visit it in person. In this visit he will cause to be delivered to himself by the captain, and under receipt, the register and other papers of navigation of the vessel under penalty of a fine of $50 to $200, to return the same to him (the captain) without delay when he executes the permission to leave the port (clearance),” &c.
The language of this law is so plain as to leave no doubt whatever on the duty of Colombian consuls in ports of the United States, and that under the principal of reciprocity the consuls of the United States have the right to discharge the same duties in the ports of Colombia.
I hope that by the foregoing statement I have shown to the satisfaction of the honorable secretary that, aside from international usage, the consuls of the United States have a clear and undoubted right to the custody of the registers and other official documents of the vessels of their nation while in the ports of the United States of Colombia, under the treaty of 1846, and the subsequent consular convention, any law of the United States of Colombia to the contrary notwithstanding. For that in a conflict between the provisions of a treaty and a statute law interfering with the execution of the former, the treaty must control is a well-established principle.
Before concluding my remarks on this subject, I beg to remind the honorable secretary that it has always been the policy of the United States to free commerce and navigation from all needless restraints and exactions, and that in this policy the United States have been seconded by the statesmen of Colombia and New Granada who negotiated the treaties of 1824 and 1846.
The reasons which have given rise to an international usage on the subject of the papers or documents of ships, apply with the same force to the United States of Colombia, as they do to other maritime nations, and any deviation from the reciprocity provided by treaty and maritime usage, while the commercial marine of Colombia may be small, might give rise to a similar policy on the part of other nations, proving an [Page 265] inconvenience and a burden to Colombian commerce when it shall reach, as it undoubtedly will, much larger proportions.
I am also instructed by my government to present claims for damages to citizens, and to a corporation of the United States arising out of this violation and infringement of the reciprocity in commerce and navigation guarantied by the treaty of 1846, by an officer of the United States of Colombia. I shall have the honor to bring these claims to the notice of the honorable secretary at the earliest convenience.
Before the receipt of the instructions from my government, on the subject of this communication, I had several conversations with the predecessor of the honorable secretary, by whom I was assured that no disposition existed on the part of the government to deviate from the previous understanding on this question. In order to remove any impression which might have been made upon my government, based upon the aggravated circumstances of this case, that the action of the inspector of the port of Colon-Aspinwall was in any manner due to a sense of unfriendliness on the part of the Colombian Government towards the Government of the United States, I took occasion to avail myself of the last mail to send a dispatch to my government, giving the substance of my conversation on this subject with the predecessor of the honorable secretary.
In view of the importance attached to this question by my government, I should feel obliged to the honorable secretary if he would indicate a time when it would suit his convenience to have a personal conference, with a view to coming at an understanding thereon, and that this ground of complaint, between the two countries be removed.
I avail myself of this opportunity to assure the honorable secretary of my high consideration, and to subscribe myself,
His, &c.,
Mr. Dichman to Mr. Arosemena.
Bogota, December 13, 1878.
Sir: Under instructions from my government, I beg to call the attention of the honorable secretary to the following cases of the violation of treaty stipulations on the part of officials of the Colombian Government, relating to the question of registers and other official papers of vessels of the United States of America, which have been brought to the notice of the State Department by the consul of the United States at Barranquilla, and transmitted to me since my communication to your department of November 5, 1878:
First. The schooner “Thomas W. Holder,” lying in the Magdalena River in front of Barranquilla, was ready to go to sea, and her captain went to the office of the collector of customs for his register. Search was made for it, but it could not be found, and it was not until a day or two after the vessel was ready to sail that the register was discovered and placed in the hands of the captain.
I shall have the honor to present a claim for damages for the needless detention of this vessel, in connection with the claim to which reference is made in my communication of November 8, 1878.
Secondly. The brig J. Howland arrived in Sabanilla, when the custom-house officer took her register, and when the brig was about to sail for the mouth of the Magdalena River, the register of the vessel could not be found, and the brig was obliged to sail without it. Fortunately the brig entered the river without encountering bad weather, but had she been blown to sea the question would have been serious.
Thirdly. On the morning of September 19, 1878, the consul of the United States of America at Barranquilla, in pursuance with the authority and right stipulated for in article 33 of the treaty of 1846, and article 11 of the consular convention, made an application to the governor of the province of Barranquilla, demanding the arrest of a deserter from an American vessel. Compliance with the demand of the consul was refused by the governor, unless the consul should produce the register and muster-roll, as provided by the treaty. This the consul was unable to do, as the papers were in the custody of the Colombian authorities, and thereby a plain treaty stipulation was violated.
In my communication of November 5, 1878, I endeavored to present to the honorable secretary a view of the principles upon which rests the question of the custody of the registers of the vessels of the United States by the consuls of the nation in the ports of Colombia.
To this I beg leave to add that the granting of a right to the consuls of both nations, as the one of article 11 of the consular convention, necessarily carries with it the means for its enforcement, and that from this article, as well as from article 38 of the [Page 266] treaty of 1846, it would be difficult to draw any other inference than that the register, muster-rolls, and other official papers of vessels of both nations must be in the possession of their respective consuls.
As this is also in conformity with the practice of all the commercial nations of the world, the reason for such a maritime usage must arise from the practical advantages which it confers, and the spirit of reciprocity among nations, which is one of the most distinguishing features of the civilization of the nineteenth century.
This is also recognized by Colombia, as I had the honor of pointing out in my communication of November 5, 1878, in which I cited the law of Colombia (article 62, chapter 2, law 23, May 1, 1866) on the subject of the duties of Colombian consuls in foreign ports.
Any departure from a practice so well established by the common consent of all commercial nations is apt to lead to complications such as I have been instructed to bring to the notice of the honorable secretary.
I would also beg leave to suggest as a grave objection to the present regulation of the Colombian Government on this subject, that inasmuch as the execution of the same is confided to officers at a great distance from the seat of government, with slow and difficult means of communication, the hasty, careless, or inconsiderate action of such officers may endanger the good relations between the United States of Colombia and other governments, a danger which must far outweigh in importance the advantages which an adherence to the present system can possibly confer.
I trust that the honorable secretary will appreciate the importance of this cause of complaint between this government and that which I have the honor to represent, and that he will accord me the honor of an interview at as early a moment as may be convenient to him, in order that in a conversation, a protocol of which I would respectfully suggest to be kept for transmission to my government, the honorable secretary and I may arrive at a satisfactory settlement of the difficulty in question.
With sentiments of the highest consideration,
I am, &c.,